On June 22, 2020, the Supreme Court held in Liu v. SEC that the Securities and Exchange Commission (“SEC”) may seek, and courts have the power to grant, disgorgement as an equitable remedy for violations of the securities laws. However, the Court also placed potentially important limitations on disgorgement, holding that—to qualify as an equitable

On June 1, 2020, the Criminal Division of the U.S. Department of Justice (the “Department”) released revisions to its guidance regarding the Evaluation of Corporate Compliance Programs, which the Department uses in assessing the “adequacy and effectiveness” of a company’s compliance program in connection with any decision to charge or resolve a criminal investigation, including

Cleary Gottlieb and Tiantong & Partners 天同律师事务所 continue their collaboration to produce joint analyses regarding some of the current U.S. regulatory challenges for Chinese companies.  In light of renewed interest in China on the topic of U.S. long-arm jurisdiction, this third analysis reviews lessons learned on civil personal jurisdiction from cases involving the Bank of

On May 7, 2020, the Supreme Court unanimously held in Kelly v. United States that the “Bridgegate” political retribution scheme did not violate the wire fraud or federal-program fraud statutes. Although the government proved that the defendants devised and facilitated the closing of multiple lanes of the George Washington Bridge in September 2013, resulting in

On March 24, the Commodity Futures Trading Commission (“CFTC”) released its Final Interpretive Guidance on Actual Delivery for Digital Assets (“Final Interpretation”), addressing longstanding questions regarding which digital asset transactions could be deemed “retail commodity transactions” under the Commodity Exchange Act (“CEA”).  The Final Interpretation comes two years after the CFTC issued proposed interpretive guidance (“Proposed Interpretation”).
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Cleary Gottlieb and Tiantong & Partners 天同律师事务所 are continuing their collaboration to produce joint analyses regarding some of the current U.S. regulatory challenges for Chinese companies.  This second analysis is based on a case study of U.S. efforts to extradite Huawei’s CFO, Meng Wanzhou, from Canada, and considers risk mitigation for Chinese corporate executives travelling

Cleary Gottlieb and TianTong Law Firm recently produced a joint analysis regarding some of the current U.S. regulatory challenges for Chinese companies.  The analysis is based on a case study of the national security review concerning the video sharing network TikTok, and an analysis of the Chinese government’s powers under Chinese law to obtain and

On March 9, 2020, the Financial Industry Regulatory Authority (FINRA) updated its guidance for broker-dealers’ pandemic-related business continuity plans (BCPs) and issued regulatory guidance and relief from some of their obligations in response to the novel coronavirus (COVID-19) global pandemic.  FINRA made clear that Regulatory Notice 20-08 imposes no new rules or obligations on members and applies only to members’ obligations under FINRA’s rules and regulations and not those of other securities regulators.  Acknowledging the evolving nature of the crisis, FINRA also invited members to consult with the organization to address additional compliance challenges as they arise, noting that additional regulatory guidance and relief may be provided at a later date.  Finally, FINRA indicated that Regulatory Notice 20-08 will remain effective until a subsequent notice of cessation is published.
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On January 27, 2020, the U.S. Securities and Exchange Commission (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) issued examination observations related to cybersecurity and operational resiliency practices (“Examination Observations”). The observations highlight a set of best practices by market participants in the following areas:  (1) governance and risk management, (2) access rights and controls, (3) data loss prevention, (4) mobile security, (5) incident response and resiliency, (6) vendor management and (7) training and awareness.  Cybersecurity has been a key priority for OCIE since 2012.  Since then, it has published eight cybersecurity-related risk alerts, including an April 2019 alert addressing mobile security. OCIE has perennially included cybersecurity practices as part of its examination priorities (“Examination Priorities”) and listed all but mobile security as “particular focus areas” in the “information security” priority for 2020
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Yesterday the Securities and Exchange Commission took two significant actions relating to the MD&A disclosures in annual and quarterly reports of public companies.

First, it proposed amendments to MD&A requirements that would, if adopted, make significant and long-overdue improvements to a central disclosure requirement of the U.S. securities laws. Second, it issued guidance on the